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“Public” trials at Guantánamo

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The Sixth Amendment provides one of our more important rights under the Constitution (as amended):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

This was added after some hard lessons learned from Star Chamber and other secret proceedings wherein someone could be convicted in absentia, with no opportunity to offer a defense. The trial must be public so the people can see for themselves that it’s a fair trial.

That’s not what will happen in Guantánamo. McClatchy reports:

A defense lawyer lets slip at the war court convening here that a battlefield commander changed an Afghanistan firefight report in a way that seemed to help a U.S. government murder case. Reporters hear the field commander’s name but are forbidden to report it.

In another case, a judge approves the release of a captive’s interrogation video showing the blurred face of an American agent. But a federal prosecutor on loan to the Pentagon withholds it “out of an abundance of caution.”

Even as the U.S. government edges toward full-blown, war-crimes trials by military commission here, with more hearings next week, all sides are grappling with what information can be made public and what must be kept secret.

Consider: A new courtroom here sequesters Pentagon-approved spectators behind a soundproofed window. If a terror suspect tries to shout about his treatment in U.S. custody, a military censor can mute the audio feed that observers hear.

Under rules that protect interrogation techniques, the Pentagon’s war court won’t let the reputed 9/11 architect, Khalid Sheik Mohammed, say he was waterboarded — something the CIA director, Air Force Gen. Michael V. Hayden, confirmed on Feb. 5.

Pentagon officials defend the Military Commissions as engaged in a delicate balancing act — working to mete out justice to war-on-terrorism captives without exposing U.S. intelligence tactics and personnel to public scrutiny.

As long as there is an al Qaida, they argue, such information could be used to hurt Americans or their allies.

At the same time, the commissions architects have long pledged that they will be open to international scrutiny.

”We can’t disclose classified information. We can’t disclose privacy information,” the war-court legal advisor, Brig. Gen. Thomas Hartmann, said in an interview.

Unlike in federal courts, jurors at commissions are U.S. officers. In some circumstances, they can see or hear evidence that is shielded from the public.

Hartmann argues that a commissions defendant gets the same rights as a soldier at a court-martial — among them an American military lawyer to defend him, and a presumption of innocence.

Attorneys for the Guantánamo captives disagree. They argue that, unlike civilian or military justice systems, the rules favor the government and permit evidence gleaned from abusive interrogations.

The Pentagon prosecutor has accused six of the 280 or so captives here of being 9/11 conspirators. If Hartmann’s boss approves the death-penalty charges, conviction could end in their execution.

Meantime, the American Civil Liberties Union is suing the Bush administration in federal court to unseal portions of transcripts from military hearings, in which Mohammed and others now held at Guantánamo lay out allegations of torture.

‘There is no remotely legitimate basis for the government to withhold these prisoners’ account of their mistreatment,” says Ben Wizner, an ACLU staff attorney and sometime war-court observer.

”I would simply note that governments don’t censor information to conceal lies,” Wizner said. “They censor information to conceal the truth.”

The military says these trials — the first war-crimes tribunals since World War II — are unprecedented because they risk talking about tactics while the nation is at war. Hence, the need for secrecy.

Critics say such secrecy could strip the military commissions of legitimacy.

When he was chief prosecutor, Air Force Col. Moe Davis once likened Guantánamo detainees to ”vampires” fearful of the bright light of American justice.

But then in October he resigned his post, protesting what he called political pressure to speed up the cases — and sacrifice transparency. Rushing them, he said, risks using secret evidence or confessions gained through tough interrogation tactics.

With time, he said in a recent interview, the prosecution can build public cases using evidence from before Mohammed’s capture — and before he was waterboarded by the CIA.

”If they want to take KSM out and shoot him, I would have no problem with that. Fine,” he said, using Mohammed’s initials. “If they want to call it military justice, you’ve gotta give him a fair trial.”

Meantime, the Pentagon has created a labyrinth of bureaucracy that shields from public disclosure some of the inner workings of the commissions.

Reporters and other observers must agree to a series of regulations that have no counterpart in the civilian court system. Journalists are forbidden, for example, to report anything uttered in court that a Pentagon security officer declares “protected information.”

Earlier this month, a Navy defense lawyer mistakenly spoke the last name of the battlefield commander at the capture of a 15-year-old Canadian in Afghanistan. Reporters were instructed to identify him only as ”Lt. Col. W.,” or risk being banned from covering the court.

More at the link.

Written by Leisureguy

3 April 2008 at 10:13 am

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